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2015 DIGILAW 34 (RAJ)

Deshu v. State of Rajasthan

2015-01-06

VIJAY BISHNOI

body2015
JUDGMENT 1. - This Criminal Misc. Petition is filed by the petitioner while challenging the order dated 16.01.2014 passed by the Additional Chief Judicial Magistrate, Bhinmal, District Jalore (hereinafter referred to as 'the court below') whereby the application filed by the respondent No.2 - father of the petitioner for handing over the custody of the petitioner to him has been rejected. In the same order, the court below has also rejected the application moved on behalf of the petitioner to release her from police custody and allow her to go as per her own will. 2. The court below, while rejecting the application, has observed that from the transfer certificate of the school concerned, it appears that the age of the petitioner is less than 18 years and she is minor and, therefore, she cannot be allowed to go as per her own will and as she is not willing to go with her father, her custody cannot be handed over to her fatherrespondent No.2. While observing this, the court below has ordered for keeping the petitioner in Government Balika Sudhar Grah, Mandore, Jodhpur till further orders. 3. Learned counsel for the petitioner has submitted that the petitioner is major and has lawful right to live as per her own will. It is contended that the age of the petitioner shown in the transfer certificate is incorrect and in fact the petitioner was more than 18 years when the FIR No.9/2014 was lodged at Police Station, Bhinmal, District Jalore, wherein her father alleged that she has been abducted by Talka Ram S/o Bhura Ram R/o Junjani, Tehsil Bhinmal, District Jalore. It is also contended by learned counsel for the petitioner that as per the direction given by this Court vide order dated 29.09.2014, the Child Welfare Committee, Jodhpur has conducted enquiry regarding age of the petitioner and got her examined from the Medical Jurist of Mahatma Gandhi Hospital, Jodhpur and the Medical Jurist, in his report dated 26.11.2014, has opined that age of the petitioner is between 19 to 20 years. Learned counsel for the petitioner has submitted that at the time of passing of impugned order, the petitioner might be minor but now she is major and, therefore, she is entitled to live and go as per her own will. 4. Learned counsel for the petitioner has submitted that at the time of passing of impugned order, the petitioner might be minor but now she is major and, therefore, she is entitled to live and go as per her own will. 4. Learned Public Prosecutor as well as learned counsel for the respondent No.2 have submitted that since in the school certificate, the date of birth of the petitioner is shown as 01.08.1997, admittedly she was minor on the date of incident and in such circumstances the court below has not committed illegallity in passing the impugned order. 5. Heard learned counsel for the parties and perused the impugned order and also gone through the report submitted by the Child Welfare Committee, Jodhpur pursuant to the direction given by this Court on 29.09.2014. 6. The respondent No.2 - father of the petitioner has lodged the FIR No.9/2014 on 04.01.2014 at Police Station, Bhinmal, District Jalore while alleging that his daughter (petitioner) has been abducted by Talka Ram S/o Bhura Ram on 03.12.2013. On the basis of the said report, the police has registered above mentioned FIR against Talka Ram S/o Bhura Ram for the offences punishable under Section 363 and 366 IPC. 7. It is informed by learned counsel for the parties that after thorough investigation, the police has filed negative final report in the above mentioned FIR, while holding that no offence has been committed by the Talka Ram. It is in connection with said FIR, the petitioner was recovered by the police and produced before the court below and the court below vide order dated 16.01.2014, has ordered for keeping the petitioner in the Government Balika Sudhar Grah, Mandore, Jodhpur. 8. The petitioner, present in person, has stated that she was never admitted in any school and date of birth shown in the school records is not correct and the school document has been manipulated by her father - respondent No.2 only with the intention to get her custody. 9. It is also noticed that the photocopy of school certificate pertaining to the younger brother of the petitioner namely Veera, is available on record, wherein his date of birth is shown as 07.03.1998. After noticing the said certificate, it appears that the age of the petitioner shown in the school certificate is not reliable. 10. 9. It is also noticed that the photocopy of school certificate pertaining to the younger brother of the petitioner namely Veera, is available on record, wherein his date of birth is shown as 07.03.1998. After noticing the said certificate, it appears that the age of the petitioner shown in the school certificate is not reliable. 10. Pursuant to the direction given by this court, the Child Welfare Committee, Jodhpur has got examined the petitioner from the Medical Jurist, Mahatma Gandhi Hospital, Jodhpur, wherein her age was shown 19 to 20 years on 26.11.2014. 11. The petitioner present in person, also appears to be more than 18 years and she also desires to go with Talka Ram S/o Bhura Ram claiming him as her husband. 12. Looking to the overall facts and circumstances of the case, this Court is of the opinion that the court below was not justified in sending the petitioner to the Government Balika Sudhar Grah, Mandore, Jodhpur. Resultantly, this Criminal Misc. Petition is allowed. The order dated 16.01.2014 is hereby set aside. The Superintendent, Balika Sudhar Grah, Mandore, Jodhpur is directed to release the petitioner from Government Balika Sudhar Grah, Mandore, Jodhpur after receiving certified copy of this order. Since the petitioner is major, she has lawful right to move as per her own will.Petition allowed. *******